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Arico v The Queen

Arico v The Queen

Case [2018] VSCA 135 24 May 2018

Appeal

Admissibility of Evidence

Criminal Liability

Compensatory Damages

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0047

ROCCO ARICO	Applicant
v
THE QUEEN	Respondent

S APCR 2017 0048

ROCCO ARICO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL ACJ, WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 February 2018
DATE OF JUDGMENT:	24 May 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 135	First Revision: 10 November 2020 [342]
JUDGMENT APPEALED FROM:	DPP v Arico (Unreported, County Court of Victoria, Judge Chettle, 10 November 2016 (Conviction), 3 March 2017 (Sentence))

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CRIMINAL LAW – Appeal – Conviction – Extortion – Trafficking in large commercial quantity of drug of dependence (ice) – Offer to sell drugs – Whether offer genuine – Whether conviction unsafe – Evidence of finding of gun and ammunition in applicant’s possession – Whether relevant to extortion and/or trafficking charges – Whether danger of unfair prejudice outweighed probative value – Defence counsel conceded relevance – No anti-propensity direction sought – Leave to appeal refused – Drugs, Poisons and Controlled Substances Act 1981 s 71, Evidence Act 2008 s 137, Jury Directions Act 2015 ss 11–12.

EVIDENCE – Admissibility – Criminal trial – Charges of extortion, drug trafficking – Evidence of finding of gun and ammunition in applicant’s possession – Whether relevant – Whether danger of unfair prejudice outweighed probative value – Extortion charges based on threats to shoot – Whether applicant in business of drug trafficking – Circumstantial case –— Indicia of drug trafficking — Evidence admissible — Evidence Act 2008 ss 55, 137.

CRIMINAL LAW – Appeal – Sentence – Trafficking in large commercial quantity – Offer to sell drugs – Plea of not guilty – Sentence of nine years’ imprisonment – Whether manifestly excessive – Whether offer to sell less serious form of trafficking – Consideration of risk of harm – Appeal allowed – Resentenced to seven years’ imprisonment – Drugs, Poisons and Controlled Substances Act 1981 s 71.

WORDS AND PHRASES – ‘Offer for sale’, ‘accoutrements of drug trafficking’, ‘tools of trade’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC with Mr J O’Connor	Condello Lawyers
For the Crown	Ms F Dalziel	Mr J Cain, Solicitor for Public Prosecutions

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PART 1: CONVICTION APPEAL (S APCR 2017 0048)

MAXWELL ACJ
WEINBERG JA:

The applicant stood trial in the County Court at Melbourne on three charges of extortion (charges 1, 2 and 6), one charge of intentionally causing injury (charge 3), and one of trafficking in a drug of dependence (methylamphetamine) (‘ice’) in not less than a large commercial quantity (charge 5) (‘the first trial’). On 10 November 2016, he was convicted of these five offences. Charge 4 was an alternative to charge 3, and no verdict was therefore taken in relation to that charge.

In February 2017, the applicant again faced trial in the County Court (‘the second trial’). He was convicted of one charge of being a prohibited person in possession of a firearm (charge 1), and one charge of possessing a drug of dependence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arico v The Queen

Details

AGLC: Rocco Arico v The Queen [2018] VSCA 135
Case: [2018] VSCA 135
Decision Date: 24 May 2018

CaseChat Overview and Summary

Arico was convicted on charges of trafficking in a large commercial quantity of a drug of dependence and extortion. The applicant sought leave to appeal against his conviction and sentence. The High Court of Australia considered the appeal and refused leave to appeal the conviction but allowed the appeal in respect of the sentence. The key issues were whether the evidence of the gun and ammunition found in the applicant's possession was admissible, whether it was relevant to the charges, and whether the danger of unfair prejudice outweighed its probative value. The court found that the evidence was relevant to the extortion charges and the drug trafficking charges. The evidence demonstrated the applicant's involvement in drug trafficking and the seriousness of the threats he made. The court also considered whether the sentence of nine years' imprisonment was manifestly excessive, given that the applicant had pleaded not guilty and the offer to sell drugs was for a less serious form of trafficking. The court found that the sentence was manifestly excessive and resentenced the applicant to seven years' imprisonment.

The applicant was convicted of trafficking in a large commercial quantity of a drug of dependence and extortion. The key issue before the court was whether the evidence of the gun and ammunition found in the applicant's possession was admissible and relevant to the charges. The court found that the evidence was relevant to both the extortion and drug trafficking charges. The evidence demonstrated the applicant's involvement in drug trafficking and the seriousness of the threats he made. The court also considered whether the sentence of nine years' imprisonment was manifestly excessive, given that the applicant had pleaded not guilty and the offer to sell drugs was for a less serious form of trafficking. The court found that the sentence was manifestly excessive and resentenced the applicant to seven years' imprisonment. The court held that the evidence of the gun and ammunition was admissible and relevant to the charges, and that the danger of unfair prejudice did not outweigh its probative value. The court also held that the sentence was manifestly excessive and resentenced the applicant to seven years' imprisonment.

Orders